Absence management procedures 




Contractual or non-contractual?


Absence management procedures may be contractual or non-contractual. On its own, a change to a non-contractual absence procedure is unlikely to breach the employment contract. However, making important changes without proper warning or consultation is likely to breach the implied duty of trust and confidence (see Chapter 3). Where a union is recognised, consultation should be with the union. Where there is a safety committee appointed under the Safety Representatives and Safety Committee Regulations 1977, consultation should be with the safety committee. 




In Sparks and others v Department for Transport [2016] EWCA Civ 366, three civil service unions, Prospect, the PCS and the FDA, won an important victory when the Court of Appeal ruled that trigger points in an absence management procedure were contractual and could only be changed by agreement, through collective bargaining with the recognised unions. In this case, the new trigger points were much stricter than those they replaced, and would have stigmatised employees with chronic complaints. Whether or not a sickness absence procedure is contractual will depend on the facts of each case. In the Sparks case, the parties’ intention as to the contractual status of the relevant parts of the procedure was clearly recorded, using unambiguous language. See Chapter 3, page 80, for more information on determining when terms are likely to have contractual status.